Reina-Rodriguez v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HECTOR REINA-RODRIGUEZ,  No. 08-16676
Petitioner-Appellant, D.C. Nos.
v. 4:07-cv-00640-DCB
UNITED STATES OF AMERICA,  4:04-cr-02415-DCB-
Respondent-Appellee. GE
ORDER AND
 OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Argued and Submitted
May 9, 2011—San Francisco, California

Filed September 13, 2011

Before: Betty B. Fletcher and Sidney R. Thomas,
Circuit Judges, and Nancy Gertner, District Judge.*

Opinion by Judge Thomas

*The Honorable Nancy Gertner, District Judge for the U.S. District
Court for Massachusetts, Boston, sitting by designation. Judge Gertner
retired from the judiciary on September 1, 2011, but concurred in the opin-
ion prior to her retirement.

17363
 REINA-RODRIGUEZ v. UNITED STATES 17365

COUNSEL

John M. Sands, Federal Public Defender, Christopher R. Kil-
burn, Brian I. Rademacher, Lee Tucker, Assistant Federal
17366 REINA-RODRIGUEZ v. UNITED STATES
Public Defenders, Tucson, Arizona, for appellant Reina-
Rodriguez.

Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Elizabeth Adair Strange, Assis-
tant United States Attorney, Tucson, Arizona, for appellee
United States of America.

ORDER

The opinion filed on June 22, 2011 is WITHDRAWN. A
new opinion will be filed concomitantly with this order. The
order filed August 19, 2011 granting the United States an
extension of time in which to file a petition for rehearing is
VACATED as moot. The parties will be permitted to file new
petitions for rehearing and rehearing en banc as to the new
opinion, if they choose to do so.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether our decision in United
States v. Grisel has retroactive effect. We conclude that it
does, and we reverse the judgment of the district court.

I

Hector Reina-Rodriguez appeals the district court’s denial
of his 28 U.S.C. § 2255 motion to correct a federal sentencing
enhancement imposed on account of his Utah conviction for
burglarizing a “dwelling.” Reina-Rodriguez was indicted in
federal district court for illegal re-entry after deportation, in
violation of 8 U.S.C. § 1326 and he pled guilty without a plea
agreement.
 REINA-RODRIGUEZ v. UNITED STATES 17367
Under the Sentencing Guidelines, a violation of 8 U.S.C.
§ 1326 has a base offense level of eight. U.S.S.G. § 2L1.2.
The district court applied a 16-level enhancement because
Reina-Rodriguez had previously been convicted of second-
degree felony burglary in Utah—specifically, “burglary of a
dwelling” under Utah Code Ann. § 76-6-202(2)—which the
court concluded was a felony “crime of violence” under the
Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & n.1(B)(iii).
Taking into account other adjustments and mitigating factors,
the district court sentenced Reina-Rodriguez to 51 months,
followed by 36 months of supervised release, and a $100 spe-
cial assessment.

At his sentencing, Reina-Rodriguez objected to the 16-level
enhancement. He conceded that he had been convicted of bur-
glarizing a dwelling under Utah law. But he claimed the
enhancement did not apply because “dwelling” was defined
more broadly under Utah law, see Utah Code Annotated § 76-
6-201(2),1 than under the Guidelines and the record did not
establish that the building he burglarized was a “dwelling”
under the Guidelines. As a result, he argued, his Utah bur-
glary conviction did not qualify as burglary of a dwelling
under the Guidelines.

The district court disagreed. The judge told Reina-
Rodriguez at sentencing that he had conducted a sua sponte
investigation and had taken judicial notice of public property
records in Weber County, Utah, which showed that the bur-
glarized building was a single-resident building and, hence, a
“dwelling” under the Guidelines. Thus, the court concluded,
Reina-Rodriguez’s conviction matched the Guidelines’ defini-
tion of burglary.

After being sentenced, Reina-Rodriguez filed a Rule 35
1
Under Utah Code Annotated § 76-6-201(2), “[d]welling” means a
building that is usually occupied by a person lodging in the building at
night, whether or not a person is actually present.
17368 REINA-RODRIGUEZ v. UNITED STATES
motion to modify his sentence. See Fed. R. Crim. P. 35(a). He
argued that the district court erred by not providing him notice
of its sua sponte investigation or its reliance on the public
property records. The district court denied the motion, con-
cluding that any error was harmless.

Reina-Rodriguez filed a direct appeal, challenging the 16-
level enhancement. A panel of our Court affirmed the district
court. United States v. Reina-Rodriguez, 468 F.3d 1147 (9th
Cir. 2006). The panel concluded that it did not need to address
the question of whether the district court correctly relied on
the public property records. Id. at 1154 n.8. Instead, the panel
applied the categorical and modified categorical analysis first
articulated in Taylor v. United States, 495 U.S. 575 (1990),2
and determined that “burglary of a dwelling under Utah law
categorically fits the Guidelines’ definition of burglary of a
dwelling.” Reina-Rodriguez, 468 F.3d at 1157. As part of its
analysis, the panel reasoned that structures adapted for sleep-
ing or lodging, which are “dwellings” under Utah law, cate-
gorically qualify as dwellings under the Guidelines. See id. at
1156-57. Thus, the panel concluded, the district court cor-
rectly applied the 16-level enhancement.
2
To determine whether a prior conviction qualifies as a “crime of vio-
lence” under U.S.S.G. § 2L1.2, we first apply the “categorical approach.”
United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010).
Under that approach, we first consider whether a prior offense is
categorically a crime of violence by assessing whether the full
range of conduct covered by the statute falls within the meaning
of that term. If the statute of conviction is overbroad—that is, if
it punishes some conduct that qualifies as a crime of violence and
some conduct that does not—it does not categorically constitute
a crime of violence. In that case, we must then apply the “modi-
fied categorical approach” to determine whether the record of
conviction shows that the defendant was convicted of the ele-
ments of the generically defined crime.
Id. (citations and internal quotation marks omitted).
 REINA-RODRIGUEZ v. UNITED STATES 17369
After the panel affirmed the district court in Reina-
Rodriguez, our Court issued an en banc opinion in United
States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In
Grisel, we overruled Reina-Rodriguez and other decisions “to
the extent that [they] suggest[ed] that state statutes satisfy
[Taylor’s] categorical inquiry when they define burglary to
include non-buildings adapted for overnight accommodation
. . . .” 488 F.3d at 851 n.5. After Grisel, courts must utilize
the modified categorical approach to determine whether a
“dwelling” in Utah meets the Guidelines’ definition of
“dwelling.” See id. A non-building adapted for
accommodation—e.g., a vehicle or boat—may still qualify as
a “dwelling” under the Guidelines, but “it does not do so cate-
gorically.” Id.

In light of Grisel, Reina-Rodriguez filed a motion with the
district court under 28 U.S.C. § 2255, asking it to vacate, set
aside, and correct his sentence. He argued that Grisel should
be applied retroactively and that his conviction should be set
aside because “the Grisel court specifically overruled the pre-
vious Reina-Rodriguez panel’s opinion.” The district court
denied the motion because Reina-Rodriguez did not “establish
that the decision in Grisel should operate retroactively or that
Grisel provides him any relief.”

Reina-Rodriguez moved for reconsideration, but the district
court denied that motion, as well. The district court acknowl-
edged that Grisel overruled Reina-Rodriguez, at least in part:
“[A]fter Grisel, a modified categorical analysis must be uti-
lized in the Ninth Circuit to determine if there has been a
crime of violence that involved a dwelling as defined by Gri-
sel.” But, the court reasoned, both it and we had met the dic-
tates of the new rule by applying a modified categorical
approach.

Reina-Rodriguez requested a certificate of appealability,
but the district court denied the request. Among other reasons,
it concluded that “the issues raised in the COA have previ-
17370 REINA-RODRIGUEZ v. UNITED STATES
ously been addressed to, seriously considered by, and
resolved against this Court and the Ninth Circuit Court of
Appeals.” We, however, granted Reina-Rodriguez’s request
for a certificate of appealability with respect to the question
of “whether appellant’s sentence is unlawful based on his sen-
tencing enhancement for a prior crime of violence based on
a Utah burglary conviction.”

We have jurisdiction, under 28 U.S.C. § 2253, to review
the district court’s denial of Reina-Rodriguez’s § 2255 motion
and his motion for reconsideration. We review de novo: (1)
the district court’s denial of a 28 U.S.C. § 2255 motion,
United States v. Gamba, 541 F.3d 895, 898 (9th Cir. 2008);
(2) the district court’s interpretation of the Sentencing Guide-
lines, United States v. Salazar-Mojica, 634 F.3d 1070, 1072
(9th Cir. 2011); and (3) all other questions of law, United
States v. Millis, 621 F.3d 914, 916 (9th Cir. 2010).

II

[1] Generally speaking, new constitutional rules of crimi-
nal procedure do not operate retroactively for cases filed by
state prisoners3 seeking collateral federal habeas relief.
Teague v. Lane, 489 U.S. 288, 310 (1989). The primary ques-
tion in this case is whether Teague precludes retroactive
application of Grisel. We conclude that it does not.

The threshold questions for Teague application are whether
the articulated rule is (1) a new constitutional rule and (2) pro-
cedural or substantive. If the threshold qualifications for
Teague applicability are satisfied, there are two identified
additional exceptions to the doctrine. Beard v. Banks, 542
U.S. 406, 411 (2004) (citations and internal quotation marks
omitted). The first Teague exception that the Supreme Court
has described is for “rules forbidding punishment of certain
3
But see subsection C, infra, discussing our application of Teague to
federal prisoners’ § 2255 motions.
 REINA-RODRIGUEZ v. UNITED STATES 17371
primary conduct [or to] rules prohibiting a certain category of
punishment for a class of defendants because of their status or
offense.” Id. at 416 (citations and internal quotation marks
omitted). However, as the Supreme Court has noted, rules
falling under this “exception” are “more accurately character-
ized as substantive rules not subject to the bar.” Schriro v.
Summerlin, 542 U.S. 348, 352 n.4 (2004). In other words,
what has been categorized traditionally as an exception is a
restatement of the threshold requirement that the new rule be
procedural rather than substantive. See Beard, 542 U.S. at 411
n.3 (citations and internal quotation marks omitted).

Under the second exception, Teague does not apply to “wa-
tershed rules of criminal procedure implicating the fundamen-
tal fairness and accuracy of the criminal proceeding.” Id. at
417 (citations and internal quotation marks omitted).

There are several reasons why Teague does not apply to
Grisel.

A

First, Teague applies only to “new constitutional rules of
criminal procedure.” Danforth v. Minnesota, 552 U.S. 264,
274 (2008) (quoting Teague, 489 U.S. at 310) (emphasis
added). If the new rule is not founded on constitutional con-
cerns, it does not implicate Teague. See, e.g., United States v.
Talk, 158 F.3d 1064, 1071 (10th Cir. 1998) (concluding that
retroactive application of a decision was not Teague barred
because the decision was “neither new nor constitutional. . . .
[The] prescriptions [of the decision] are not constitutional.”),
abrogated on other grounds as recognized in United States v.
Harms, 371 F.3d 1208, 1210 (10th Cir. 2004); Oliver v.
United States, 90 F.3d 177, 179 (6th Cir. 1996) (“Teague
stands for the proposition that new constitutional rules of
criminal procedure will not be announced or applied on col-
lateral review” (quotation marks and citation omitted)).
17372 REINA-RODRIGUEZ v. UNITED STATES
[2] Here, Reina-Rodriguez seeks to avail himself of a rule
from Grisel that limits the definition of burglary under the
Armed Career Criminal Act. Grisel is a new rule. See Whor-
ton v. Bockting, 549 U.S. 406, 416 (2007) (“The explicit over-
ruling of an earlier holding no doubt creates a new rule.”
(quoting Saffle v. Parks, 494 U.S. 484, 488 (1990))). But it is
not a new constitutional rule, since it does not implicate con-
stitutional rights. The rule simply delimits the conduct that
qualifies as burglary under Taylor’s categorical-approach
analysis. As a result, Teague’s retroactivity bar does not
apply.

B

Second, as we have previously explained, a “threshold
question in a Teague analysis is whether the rule that the peti-
tioner seeks to apply is a substantive rule or a procedural rule,
because ‘Teague by its terms applies only to procedural
rules.’ Bousley v. United States, 523 U.S. 614, 620 (1998).”
Hayes v. Brown, 399 F.3d 972, 982 (9th Cir. 2005). “New
substantive rules generally apply retroactively.” Summerlin,
542 U.S. at 351.

“For Teague purposes, a new rule is one of ‘procedure’ if
it affects the operation of the criminal trial process, and a new
rule is one of ‘substance’ if it alters the scope or modifies the
applicability of a substantive criminal statute.” Hayes, 399
F.3d at 982 (citing Bousley, 523 U.S. at 620). Substantive
rules “include[ ] decisions that narrow the scope of a criminal
statute by interpreting its terms . . . .” Summerlin, 542 at 351.

In Grisel, we considered the scope of a state criminal stat-
ute, Or. Rev. Stat. § 164.215(1), in the context of ascertaining
the scope of a federal criminal statute, 18 U.S.C. § 922(e). See
488 F.3d at 845. In doing so, we carefully examined the statu-
tory history, congressional intent, and Supreme Court con-
struction of the federal statute. Id. at 847-49. We concluded
that “second-degree burglary under Oregon law is not a cate-
 REINA-RODRIGUEZ v. UNITED STATES 17373
gorical burglary for purposes of the [Armed Career Criminal
Act] . . . .” Id. at 851. One could hardly have a clearer exam-
ple of a “decision[ ] that narrow[s] the scope of a criminal
statute by interpreting its terms . . . .” Summerlin, 542 U.S. at
351; see also United States v. Shipp, 589 F.3d 1084, 1091
(10th Cir. 2009) (holding that the Supreme Court’s construc-
tion of the scope of the Armed Career Criminal Act was a
decision of substance, entitled to retroactive effect in federal
habeas proceedings).

[3] Grisel was grounded in substantive law, not criminal
procedure. In short, as the Supreme Court has instructed,
Teague’s anti-retroactivity principle “is inapplicable to the sit-
uation in which this Court decides the meaning of a criminal
statute enacted by Congress.” Bousley, 523 U.S. at 620. As
such, Teague does not apply here.

The Government’s arguments to the contrary are not per-
suasive. The Government first remarks that Grisel “did not
alter the range of conduct or the class of persons that Utah law
may punish for second degree burglary.” Of course it did not,
but that is quite beside the point. Grisel altered the punish-
ment that can be imposed on federal defendants under the
Armed Career Criminal Act. Under Grisel, federal courts can
no longer categorically enhance a sentence for such defen-
dants if the underlying state statute defines “burglary to
include non-buildings adapted for overnight accommodation.”
488 F.3d at 851 n.5.

Second, the Government argues, “[T]he new rule [only]
altered the permissible methods for determining” whether a
sentencing enhancement can be imposed on account of a state
burglary conviction. Not so. Grisel did not alter the proce-
dural dimensions of Taylor’s categorical approach. Rather, it
altered the conduct that substantively qualifies as burglary
under the categorical approach.
17374 REINA-RODRIGUEZ v. UNITED STATES
Because Grisel announced a substantive rule, rather than a
procedural one, Teague does not bar retroactive application of
Grisel.

C

Although we need not, and do not, reach this question, we
must note before leaving our discussion of Teague that there
is some doubt under current Supreme Court jurisprudence
whether Teague applies to federal prisoners, such as Reina-
Rodriguez, who seek federal habeas relief. As Chief Justice
Rehnquist noted, the Teague rule was “motivated by a respect
for the States’ strong interest in the finality of criminal con-
victions, and the recognition that a State should not be penal-
ized for relying on ‘the constitutional standards that prevailed
at the time the original proceedings took place.’ ” Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993) (quoting Teague, 489 U.S.
at 306).

Recently, in Danforth, Justice Stevens discussed Teague at
length and further amplified that “the text and reasoning of
Justice O’Connor’s opinion also illustrate that the rule was
meant to apply only to federal courts considering habeas cor-
pus petitions challenging state-court criminal convictions.”
552 U.S. at 279. To be sure, Danforth did not directly con-
sider whether Teague applied to federal prisoners seeking fed-
eral habeas relief; it concerned a different question. However,
as the Sixth Circuit has noted, there is now some doubt as to
whether Teague applies to federal-prisoner petitioners. See
Duncan v. United States, 552 F.3d 442, 444 n.2 (6th Cir.
2009) (“It is not entirely clear that Teague’s framework is
appropriate for federal habeas petitions under 18 U.S.C.
§ 2255 because many of the comity and federalism concerns
animating Teague are lacking. . . . But it has been this Court’s
practice to apply Teague to § 2255 petitions, and we adhere
to it today.”).

After Lockhart, but prior to Danforth, we squarely held that
Teague applied to federal prisoner petitioners. United States
 REINA-RODRIGUEZ v. UNITED STATES 17375
Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir. 2002); see
also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
2003) (“We have already held that Teague applies equally to
sections 2254 and 2255 habeas cases.” (citing Sanchez-
Cervantes)). We need not consider in this case whether that
holding requires re-examination in light of Danforth’s con-
struction of Teague—a question that we highlight, but leave
for another day.

D

For the reasons we have discussed, Grisel applies to this
case, and the district court erred in concluding otherwise. Gri-
sel was a non-constitutional, substantive decision concerning
the reach of a federal statute. Grisel overruled the prior hold-
ing in this case that the Utah conviction categorically quali-
fied as a predicate offense under the Armed Career Criminal
Act. That conclusion applies to this habeas proceeding, and
the district court erred in concluding that it did not.

III

[4] Having decided that the Utah burglary does not cate-
gorically qualify as a predicate offense, we must now decide
whether the district court erred in its modified categorical
analysis. Under that familiar examination, if the statute crimi-
nalizes conduct that would not constitute an aggravated felony
under federal sentencing law, as is the case here, then the con-
viction may not be used for sentence enhancement unless the
record includes “ ‘documentation or judicially noticeable facts
that clearly establish that the conviction is a predicate convic-
tion for enhancement purposes.’ ” United States v. Rivera-
Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc) (quoting
United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th
Cir. 1999)), superseded on other grounds by U.S.S.G. § 2L1.2
cmt. n.4 (2002), as recognized in United States v. Narvaez-
Gomez, 489 F.3d 970, 977 (9th Cir. 2007). “ ‘[I]f the statute
and the judicially noticeable facts would allow the defendant
17376 REINA-RODRIGUEZ v. UNITED STATES
to be convicted of an offense other than that defined as a qual-
ifying offense by the guidelines, then the conviction does not
qualify as a predicate offense.’ ” Rivera-Sanchez, 247 F.3d at
908 (quoting Casarez-Bravo, 181 F.3d at 1077).

[5] Thus, the relevant inquiry is whether the judicially
noticeable documents establish that the conviction necessarily
includes all of the elements of the qualifying offense. Rosas-
Castaneda v. Holder, 630 F.3d 881, 886 (9th Cir. 2011). Judi-
cially noticeable documents under the modified categorical
approach include the “charging document, written plea agree-
ment, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented,” as
well as other documents with sufficient indicia of reliability.
Shepard v. United States, 544 U.S. 13, 16 (2005); see also
United States v. Snellenberger, 548 U.S. 699, 701-02 (9th Cir.
2008) (en banc) (per curiam).

A

With these considerations in mind, we must examine the
judicially noticeable documents in this case and determine
whether they establish that the defendant committed the
“crime of burglary of a dwelling,” as that crime has been
generically defined. The generic definition of “burglary of a
dwelling” under the Guidelines is the “ ‘unlawful or unprivi-
leged entry into, or remaining in, a building or other structure
[that is a dwelling], with intent to commit a crime.’ ” United
States v. Rodriguez-Rodriguez, 393 F.3d 849, 852 (9th Cir.
2005) (quoting Taylor, 495 U.S. at 598).

The salient question for us is whether the judicially notice-
able documents in this case establish that the burglary was of
a “dwelling.” After Grisel, the modified categorical analysis
requires courts to analyze the nature of the structure to deter-
mine whether it is a “dwelling” under the Guidelines. We
have held that a person’s residential house qualifies. See
Reina-Rodriguez, 468 F.3d at 1154-58; United States v.
 REINA-RODRIGUEZ v. UNITED STATES 17377
Guerrero-Velasquez, 434 F.3d 1193, 1196-97 (9th Cir. 2006);
United States v. Matthews, 374 F.3d 872, 877-80 (9th Cir.
2004); United States v. Wenner, 351 F.3d 969, 972-74 (9th
Cir. 2003).

However, after Grisel—and contrary to our reasoning in
this case on direct appeal—“a non-building adapted for over-
night accommodation” no longer qualifies automatically as a
“dwelling” under the Guidelines. Grisel, 488 F.3d at 851 n.5.
A non-building might qualify in some circumstances, but “it
does not do so categorically.” Id.

B

[6] In this case there are five documents urged for our con-
sideration: (1) the information; (2) the judgment; (3) the pre-
sentence report; (4) the district court’s report of its sua sponte
property investigation; and (5) a transcript of the state court
plea colloquy. We conclude that the information and the judg-
ment of conviction are documents that may properly be con-
sidered under the modified categorical approach. Shepard,
544 U.S. at 16. However, the remainder of the documents
cannot.

1

A district court may rely on an uncontroverted presentence
report for purposes of a categorical analysis when “the issue
is only whether the documents provided by the probation offi-
cer supported the fact of the . . . conviction.” United States v.
Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (emphasis added).
But it is inappropriate to use a presentence report “to deter-
mine the type or character of the conviction.” Id. (emphasis
in original). Accordingly, a district court cannot rely on a pre-
sentence report when employing a modified categorical analy-
sis. As we noted in United States v. Corona-Sanchez, 291
F.3d 1201, 1212 (9th Cir. 2002) (en banc), “[A] presentence
report reciting the facts of the crime is insufficient evidence
17378 REINA-RODRIGUEZ v. UNITED STATES
to establish that the defendant pled guilty to the elements of
the generic definition of a crime when the statute of convic-
tion is broader than the generic definition.” See also United
States v. Franklin, 895 F.2d 1231, 1237-38 (9th Cir. 1990).
Ascertaining whether Reina-Rodriguez’s conviction under
Utah Code Ann. § 76-6-202(2) qualifies as a “crime of vio-
lence” requires resort to the modified categorical approach;
the contents of the presentence report, therefore, may not be
consulted.

2

The district court also relied on its own independent exami-
nation of Utah property records in concluding that the defen-
dant had committed the offense of burglary of a dwelling. At
sentencing, the judge stated:

Furthermore, my office did a check of the public
property records in Utah, which I think this court can
take judicial notice of—I can take judicial notice
of—in fact I think the documents can be considered
judicially noticeable for purposes of enhancement,
and those property transfer records for Weaver
County Utah show that the address as listed in the
indictment at 2521 Jamerci Avenue (ph) is, in fact,
a single resident building. So Mr. Reina-Rodriguez
appears to have been charged with the burglary of a
residence. And by statute and by public records that
is a dwelling, and therefore I think he committed a
burglary, a crime of violence and should be
enhanced by 16 levels.

The district court did not place the document in the record,
so we have no means of reviewing it. It was not part of the
presentence report, and the parties had no notice before sen-
tencing that the court would consider it.

In any event, the court erred in considering the docu-
ment—as the government concedes on appeal—and it cannot
 REINA-RODRIGUEZ v. UNITED STATES 17379
form part of a modified categorical analysis. A central thesis
of Taylor is the avoidance of “subsequent evidentiary
enquiries into the factual basis for the earlier conviction.”
Shepard, 544 U.S. at 20. Such inquiries are the “evil Taylor
sought to prevent—inquiries into the underlying facts that
would essentially turn the sentencing hearings into mini-trials
on the issue of whether the prior crimes were committed.”
Franklin, 235 F.3d at 1170 (quoting United States v. Bonat,
106 F.3d 1472, 1476 (9th Cir. 1997)). Under Taylor, “respect
for congressional intent and avoidance of collateral trials
require that evidence of generic conviction be confined to
records of the convicting court approaching the certainty of
the record of conviction in a generic crime State.” Shepard,
544 U.S. at 23.

[7] Thus, the “judicially noticeable documents” that are
appropriate for consideration are materials such as the “charg-
ing document, written plea agreement, transcript of plea collo-
quy, and any explicit factual finding by the trial judge to
which the defendant assented.” Id. at 16. We have held on
numerous occasions that, under the modified categorical
approach, courts are to conduct only a limited examination of
“the record of conviction” to determine whether the defendant
was convicted of the elements of the generically defined
crime. See Espinoza-Morales, 621 F.3d at 1144; see also
Young v. Holder, 634 F.3d 1014, 1019 (9th Cir. 2011); United
States v. Moriel-Luna, 585 F.3d 1191, 1200 n.7 (9th Cir.
2009); Malta-Espinoza v. Gonzales, 478 F.3d 1080, 1082 (9th
Cir. 2007); Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.
2002), abrogated on other grounds, Nijhawan v. Holder, 129
S. Ct. 2294 (2009).

[8] Neither the parties nor the court is permitted in a Tay-
lor analysis of a past crime to develop new evidence outside
the record of conviction to prove the underlying elements of
the crime. Here, the public property records were clearly out-
side the record of conviction, and the district court erred by
relying on them at sentencing.
17380 REINA-RODRIGUEZ v. UNITED STATES
3

On appeal, the government urges us to consider the tran-
script of the state court plea colloquy. However, it did not
present this document to the district court, and it is not part
of the district court record. We decline to supplement the
record on appeal. First, we rarely take judicial notice of facts
presented for the first time on appeal. United States v. Torres-
Flores, 502 F.3d 885, 894 (9th Cir. 2007) (citations omitted).
Second, we take judicial notice of a fact only if it is “not sub-
ject to reasonable dispute.” Id. (citing Fed. R. Evid. 201(b)).
Here, the language of the colloquy is subject to varying inter-
pretations, and there is a reasonable dispute as to what the
plea colloquy establishes. Finally, and most importantly, it is
not within our province to sentence the defendant based on
considerations outside the sentencing decision. Appellate
courts are not sentencing courts. These questions are best left
to the sentencing court for consideration in the first instance.
Thus, we decline the government’s invitation to consider
material outside the district court record and deny its motion
to supplement the record.

IV

[9] Because our decision in Grisel was a non-constitutional
decision of substantive law, it applies retroactively. Under
Grisel, the defendant’s burglary conviction does not qualify
categorically as a predicate offense. All but two of the docu-
ments tendered for our consideration in the modified categori-
cal approach do not qualify as judicially noticeable documents
under Shepard. The two remaining documents require re-
examination through the lens of Grisel and its progeny.

We reverse the district court and remand for resentencing
on an open record. United States v. Matthews, 278 F.3d 880,
885 (9th Cir. 2002) (en banc).

VACATED and REMANDED.